1991 PLP 933 (CLC)

‑‑‑‑ S. 14 ‑‑‑ Word 'owner' does not contemplate a sole owner.‑‑[Words and phrases]. (d) Sindh Rented Premises, Ordinance (XVII of 1979)‑‑‑ ‑‑‑‑ Ss. 14 & 21(2) ‑‑‑ Mere fact that appeal had been admitted, would not entitle appellant to interim injunction or stay, if he had no prima facie case ‑‑‑ Even otherwise an embargo had been placed under proviso to subsection (2) of S.21 of Ordinance on grant of injunction in appeal from order passed under S.14 of Ordinance. Muhammad Ali Jan for Appellant. Muhammad Zubair Qureshi for Respondent. Date of hearing: 3rd March, 1991. This F.R.A. is preferred against the judgment of Ist Senior Civil Judge and Rent Controller (Central), Karachi dated 11‑11‑1990, whereby he directed the appellant to vacate the disputed shop and hand over the possession to the respondent within 60 days. Alongwith the F.R.A. an application for stay (CMA No.8/1991) and an application for calling R&P (CMA No.203/1991) have also been filed. 2. riefly stated the facts of the case are that the respondent is owner and landlady of shop No.'B, situated on Plot No.1151, Brass Street, Nishtar Colony, Gulbahar, Karachi and the appeUant is her tenant in respect thereof at monthly rent of Rs.300 payable in advance vide Agreement dated 23‑9‑1987 executed between the late husband of the respondent and the appellant. The respondent became widow on 22‑2‑1988. She has alleged that she, therefore, needs the disputed shop for her personal use. The respondent served a notice under Section 14 of the Sindh Rented Premises Ordinance, 1979 on the appellant on 27‑12‑1989 requiring him to deliver the possession of the disputed shop, but he did not comply with the same. Hence she filed the ejectment application before the Controller.

3. The appellant contested the application. He filed a written statement wherein he admitted the tenancy and the rate of rent. He, however, stated that after the death of Muhammad Usman, the property devolved upon, besides the appellant who was his wife, his other heirs, namely Muhammad Ilyas, Muhammad Fayyaz and Afroz Begum. He has alleged that after the7death of her husband the respondent had summoned the appellant through the Councilor of Area No.189 before whom the rent was mutually enhanced from Rs.250 to Rs.300, as such the tenancy was renewed and the application is liable to be dismissed. It was also alleged that the respondent had already secured ejectment order in respect of another Shop bearing No.'A' by filing application under Section 14 of the Ordinance. Hence the same is liable to be dismissed. The parties filed their respective Affidavits and were duly cross‑examined thereon. Documents were also filed in support of the oral evidence.

4. It was contended by the appellant's counsel that the respondent had withdrawn her rent application which she had filed against one Hamid Hussain under Section 14 of the Ordinance in respect of Shop No.'A'. In reply it was submitted by the respondent's counsel that Shop No.'A' was secured by the respondent under the Agreement in F.R.A. No.335/1987 which was under Section 15 of the Sindh Rented Premises Ordinance and was required for the personal use of the son of the respondent, whereas the present shop was required by the respondent herself.

5. The next contention. of the appellant's counsel was that after the death of Muhammad Usman the respondent had summoned the appellant before the Councilor of the area where they had mutually agreed to enhance the rent from Rs.250 to Rs.300 per month and as such new tenancy was created. The contention was repelled by the learned Controller on the ground that the said Agreement was not attested under Section 5 of ‑the Sindh Rented Premises Ordinance. The contention is even otherwise untenable. In the case of Matloob v. Mst. Saeeda A Khatoon, reported in 1988 S C M R 1575, it was held that "mere enhancement of rent or alteration of terms and conditions of tenancy would not tantamount to creation of new tenancy. In order to constitute a fresh tenancy, it must be shown to have been terminated by an order of eviction passed by Rent Controller." The facts of the reported case are almost identical to the facts of the case in hand. In the reported case the landlady, who was a widow, had applied for ejectment under Section 14 of the Sindh Rented Premises Ordinance. The tenant contested the petition and alleged that she was an old lady suffering from paralysis and hence was unable to carry on any business in the shop, that her son was very young and unable to manage the business. After becoming widow the respondent had agreed to continue the tenancy by enhancing the rent which amounted to fresh tenancy with the result that she was disentitled to the privilege extended to widows under Section

14. The Supreme Court disagreed with the contention. War Hussain Mirza, J., who wrote the judgment, observed as follows: "There is no principle of law or any provision whereby mere enhancement of rent would be tantamount to creating a new tenancy. It might well be that the tenant may have induced the landlady not to evict him at: that juncture of time by giving her lure of enhanced rent. Be that as it may, the proposition does not receive support in law that mere alteration of the terms and conditions of the tenancy would constitute a fresh tenancy. In order to constitute a fresh tenancy it must be shown to have terminated by an order of eviction passed by the Rent Controller, which is not the case here. As to the second contention, it is sufficient to state that obtaining possession on the ground of reconstruction does not ipso facto terminate the tenancy of the tenant who was in occupation of Such premises at the time of such an order."

6. The last contention of the appellant's counsel that the landlady had already secured ejectment order in respect of another shop bearing No.A' by filing application under Section 14 of the Ordinance also did not find favour with the learned Controller. It was pointed out by him that both the shops i.e. the shop in dispute and Shop No.A' already vacated by tenant Hameed Hussain, were required by the respondent for her personal use. Shop No. 'A' was amalgamated in the house and converted into a residential room to accommodate the family of the respondent. The finding of the learned Controller on this point is further fortified, by the fact that application for ejectment which was filed against Hameed Hussain was under Section 15 of the Sindh Rented Premises Ordinance and was filed by the late husband of the landlady, wherein Shop No.'A' was shown to be required for bana fide need of her husband and sons. The mere fact that there are " other heirs of the deceased husband of the landlady would not in any way adversely affect her The respondent, who is a widow, is co‑owner with those persons. The word 'owner' does not contemplate a sole owner. The cases reported in 1984 C L C 3066 (Jorge Levi v. Mst. Zakia Sultana), 1986 C L C 1534 (Mst. Seyeda Haidri Khatoon v. Aftab Ahmad and 8 others) and 1989. C L C 517 (Wahab‑un‑Nisa v. Abdul Sattar) laid down that a co‑owner is competent to file an application for ejectment. I am, therefore, satisfied that the appellant has no prima facie case.

7. It was finally contended that since the appeal has been admitted to regular hearing, the ejectment be stayed otherwise the purpose of appeal will be frustrated. The contention is not acceptable. An embargo has been placed under the proviso to subsection (2) of Section 21 of the Sindh Rented Premises of Ordinance on grant of injunction in appeal from order under Section 14 the Ordinance. It is settled law that the mere fact that the appeal has been admitted, would not entitle the appellant to interim injunction or stay, if he has no prima facie case. 1, therefore, dismiss C.M.As. Nos.203/1991 and 8/1991. H.B.T./M‑LW/K Applications dismissed.